Maria Theodoulou, Partner at Stokoe Partnership Solicitors, explores the impact of counter-terrorism laws on press and public freedoms for The Barrister.

This article has been published in The Barrister on February 25th, 2016.

Are counter-terrorism laws curbing press and public freedoms?

Any attempt to weigh anti-terror legislation against the curtailment of wider human rights is always going to be fraught with difficulty, not least whilst the shocking events across the city of Paris in November 2015 continue to cast a long and depressing shadow. Such an attempt needs to be made, however, because the legislation in question often throws up that most troublesome of concepts; the law which has been forged quickly, in the heat of panic, and which therefore carries an unacceptably higher risk of unintended consequences. The current UK anti-terror laws, as enshrined in the Terrorism Act 2000, the amended Terrorism Act 2006 and the Counter-Terrorism and Security Act 2015, can be seen at face value as an honest attempt by the powers that be to deal with a seemingly intractable, ever mutating and doubtless highly dangerous enemy or set of enemies. The fact that many of the laws go further than seems to be called for, or are framed in ways which makes their ongoing effects difficult to predict. This is pertinent in terms of the rights of both ordinary citizens and those whose job it is to hold the government to account. However, this means that taking them at face value would represent a serious lapse in intellectual rigour.

Perhaps the root of the problem lies in the fact that UK law offers a very broad and somewhat vague definition of terrorism itself, one which, in including acts of self-defence, acts intended to avoid genocide and acts which might be regarded as being legally justifiable responses to crimes against humanity, sits in opposition to much of international law.

The right of journalists to investigate and write about matters which shine a light upon the authorities has always been part of the common law of the UK – unlike in the US, where the 1st Amendment to the Constitution enshrines the right to free speech. However, it is a right which has always come with some exceptions, such as the right to publish material which would damage national security. In the absence of a 1st Amendment, the English legal position is accepted as being that which is enshrined in Article 10 of the European Convention on Human Rights:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The legislation pertaining to the rights of the police to seek access to journalists’ material was originally contained in the Police and Criminal Evidence Act (PACE) 1984. Under this Act, materials could only be taken by the police following the issuing of a warrant by a circuit judge. The journalist in question was entitled to attend the hearing in order to make their case, and this meant that the State could not fall back on national security concerns in order to use ‘closed’ evidence, which is to say evidence which neither the journalist in question, nor their representative, are allowed to see.

However, when the case in question is described as a ‘terrorist investigation’, as defined by the Terrorism Act 2000, then the legal situation changes. In cases such as these the police may seek an order from a circuit judge to access material relating to an investigation of, amongst other things:

  • The commission, preparation or instigation of acts of terrorism
  • An act which appears to have been done for the purposes of terrorism
  • The resources of a proscribed organisation
  • The commission, preparation or instigation of an offence under this Act or (certain offences under Part 1 of the Terrorism Act 2006)

Thus, the wide ranging definition of ‘terrorism’ itself is compounded by an equally wide ranging definition of a relevant investigation, to create a situation in which an increasing number of journalists might find themselves compelled to hand over materials under conditions more onerous than those established in PACE 1984. A similar application can be made to a circuit judge for an order to access the material in question, but in this case the application will be heard ex parte; the journalist in question will not be notified and will have no right to attend and state their case. Any evidence presented to justify the application will be ‘closed’ and the requirements placed upon the judge will be for a finding of reasonable grounds for believing that the warrant would be in the public interest, as opposed to, under PACE 1984, a finding that the warrant is in the public interest.

Whilst those who are happy with the current framing of the law may claim that fears of press censorship are theoretical at best and hysterical at worst, no less an expert than the government’s own independent reviewer of counter terrorism laws. David Anderson QC has voiced concerns over legislative ‘creep’ and a worry that current definitions run the risk of catching within their purview people and institutions which bear no relationship to the generally accepted idea of ‘terrorism’. Writing in 2014, he pointed out that Britain’s laws regarded the publishing of politically motivated material judged to endanger life or create a serious risk to the health and safety of the public as an act of terrorism if it was intended to influence the government, as opposed to the much higher international standard of having an ‘intention to coerce or intimidate’. In practical terms, this means that there is no need for a journalist or blogger to have intended to frighten or intimidate in order for both themselves and any employers or supporters to feel the full brunt of anti-terrorism laws, with Anderson citing the theoretical example of a campaigner voicing religious objections to vaccination being regarded as a danger to public health and thus a ‘terrorist’.

It can clearly be seen that this situation runs the risk of creating a climate in which journalists self-censor, but whilst this aspect may be difficult to quantify, a case such as that involving David Miranda offers a concrete example of counter terrorism laws being used against journalists. Miranda, the partner of Guardian journalist Glenn Greenwald, was detained for 9 hours at Heathrow Airport because it was thought he might be carrying documents leaked by whistle-blower Edward Snowden. The power to stop and search Miranda rested on Schedule 7 of the Terrorism Act 2000, and the belief that he might be carrying material ‘designed to influence a government and… made for the purpose of promoting a political or ideological cause’, which therefore meant that he could be detained by the police without the standard requirement for ‘reasonable suspicion’. More recently, BBC Newsnight journalist Secunder Kermani had his laptop seized using the same powers. In both cases, the broadening of the definition of terrorism under the law was such that certain written material – or the suspicion of the existence of said material – could be investigated as if it constituted a terrorist act, with all of the attendant weight of the law being brought to bear.

The Counter-Terrorism and Security Act 2015 (CTSA) introduced a broad range of measures aimed at tackling problems such as radicalisation, the traffic of terrorists or would-be terrorists to and from countries like Syria and the use of technology to disseminate material. Of all of the measures contained within CTSA by far the most contentious have been those relating to travel, and most specifically the creation of two new powers; the power to seize and retain travel documents such as passports and tickets and the power to prevent a person from returning to the UK via a Temporary Exclusion Order.

Clause 1 Schedule 1 of CTSA grants a police officer the power to require a person to hand over travel documents at a UK port, to search a person for said documents and to retain the documents. The requirement for doing so would be that the officer, who could also instruct a customs or immigration officer to exercise the powers, has reasonable grounds to suspect that the person in question was leaving the UK to become involved in terrorism related activity elsewhere. In order to retain the documents, authorisation from a senior police officer must be sought, although this authorisation need not be in writing and would allow for the documents to be retained for 14 days.  After this, an extension for up to 30 days can be granted by a Magistrates Court, at a hearing from which the individual involved, and their representatives, may be excluded following an application from the senior police officer concerned.

Perhaps the most worrying aspect of the above process is that it extends the use of ‘closed’ evidence to a Magistrates Court for the first time. Given that the basis for any retention of travel documents would be a suspicion of involvement or intention toward involvement in terrorism, the national security argument for the individual involved to be excluded from the process would be all but unanswerable. On top of this is the fact that, according to the draft Code of Practice issued, the Magistrate is not being asked to weigh the rights and wrongs of taking and keeping the documents in question, merely whether the police officer involved acted ‘diligently and expeditiously’. What this, in effect, means is that the appearance of judicial involvement is being created without the protection such involvement would normally offer actually being in place. Couple this with the encroachment of secrecy further into the legal system and you have an undermining of the kinds of checks and balances which citizens of the UK would normally expect to rely upon, but which are cast aside in the name of counter-terrorism.

The fact of the matter is that the powers to seize passports and to stop people leaving the UK are both already available under existing laws. A passport can be cancelled or withdrawn under the royal prerogative (something which was used in the case of ex-Guantanamo detainee Moazzam Begg), whilst a ban on international travel can be imposed as part of a Terrorism Prevention and Investigation Order (TPIM).  A ‘problem’ with this course of action, however, is the presence of much more stringent safeguards, in the form of the judicial authorisation which needs to be obtained before the order can be imposed.

The second of the travel related powers introduced by the CTSA is perhaps even more troubling, in that it reintroduces the concept of exile into British law for the first time since the days of the Magna Carta. Temporary Exclusion Orders (TEOs) would be imposed in circumstances wherein the Home Secretary ‘reasonably suspects’ a person outside the UK to be involved in activity related to terrorism. The TEO renders a UK passport invalid, and the individual concerned can then only re-enter the country if they obtain a permit allowing them to do so. TEOs last for periods of 2 years and can be renewed. During the fairly scant Parliamentary consideration of CTSA it was suggested that a fairer system, and one which would be much more compatible with the UKs commitment to international law, would be one of notified return, under which carriers would be required to notify the Home Secretary of the return of named individuals to the UK. This would then enable the police to arrest or question the individual upon their return, thus offering a greater security dividend than simply rendering them stateless and at greater risk of either personal harm or radicalisation. Concerns over TEOs were expressed in unusually strong terms during the Second Reading of CTSA by the former Attorney General Dominic Grieve QC MP, who said:

“it is a fundamental principle of the common law in this country than an individual, unconvicted – the presumption of innocence applies – should be free to reside in his own land. The principle of exile, as a judicial or even administrative tool, has not been tolerated in this country since the late 17th century…what is proposed, even if exclusion is on a temporary basis, is a draconian and unusual power being taken by the State. The point has been made that the proposal could be in breach of our international legal obligations by rendering a person stateless.”

This last concern is vital, since it hinges upon the fact that a TEO would automatically involve a period of enforced residence in a foreign jurisdiction. By rendering a person stateless and forcing them to stay in a place in which they are at genuine risk of torture or inhumane and degrading treatment, the UK would be acting at odds with its commitments to the Human Rights Act (HRA), a fact which was addressed in the Human Rights memorandum attached to the Bill. This stated that the HRA didn’t apply to British citizens once they leave the UK, a reading of international law which could, most charitably, be described as somewhat eccentric.

Legislation which is often introduced as a set of temporary measures responding to an urgently dangerous situation has a habit of then solidifying into permanent law. Since the threat presented by militant Islamic terrorism doesn’t look like going anywhere in the immediate future, the laws introduced to deal with it should be examined with the same care, depth and attention to detail as any other, since the effects of such laws – intended or otherwise – are going to impact for many years into the future. Time and again, when examining the legislation, it is possible to find new powers enacted to deal with situations or provide solutions which could have been achieved through the diligent application of existing laws. The purpose of the new legislation seems to be a desire to be seen to be doing something, and the almost unavoidable effect of such an approach, particularly when allied to a desire to speed through legislation without the usual levels of scrutiny, is to broaden and weaken the definition of ‘terrorism’ and concurrently expand the numbers of people who might find themselves trapped under the umbrella of such a definition. It may well be a cliché to say that any erosion of the kind of rights originally set out in the Magna Carta and now enshrined in international law is a victory for terrorists of all kinds, but it has become a cliché because it contains some truth. Those seeking to justify the extreme nature of some of the counter-terrorism measures often speak of an ‘existential threat’ and, whilst one can’t casually downplay the danger of terrorism, nor the cataclysmic effects it can have on individuals unlucky enough to be effected by it, a country which ultimately survived the horrors of world war two and the blitz should surely be able to keep a firmer sense of perspective concerning the dangers it faces in the 21st century. Nobody could be more delighted with such exaggeration than the terrorists themselves, except perhaps those who seek to wrest power away from the judiciary and toward the executive, a process which often revolves around the creation of a state of unquestioning fear and which, once started, is difficult to reverse. Ultimately, the process seems rather like deciding that the best way to beat the threat of burglars is to systematically destroy your own possessions, thus putting them out of harm’s way.